Salimu Ally Mohamed vs Republic (Criminal Appeal No. 85 of 2022) [2024] TZCA 1001 (29 October 2024)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA fCORAM: WAMBALI. J.A., MURUKE J.A. And MGONYA, J.A.) CRIMINAL APPEAL NO. 85 OF 2022 SALIMU ALLY MOHAMED .................................................. APPELLANT VERSUS THE REPUBLIC..............................................................RESPONDENT (Appeal from the decision of the Resident Magistrate Court of Arusha at Arusha) (Massam. SRM. Ext. Jur.^ Dated the 15th day of March, 2021 in Criminal Appeal No. 83 of 2021 JUDGMENT OF THE COURT 23rd & 29th October, 2024 MURUKE, J.A.: The appellant, Salimu Ally Mohamed, was charged and convicted of two counts of unlawful possession of government trophy. He was found guilty, convicted and sentenced to serve twenty years in prison for each count, which were ordered to run concurrently, before the Resident Magistrate Court of Arusha at Arusha in Economic Case No. 26 of 2019. It is against the said decision that the appellant unsuccessfully preferred an appeal to the High Court in Criminal Appeal No. 113 of 2021, before the case was transferred to Arusha Resident

Magistrate Court and registered as Criminal Appeal No. 83 of 2021, in which a Resident Magistrate with extended jurisdiction dealt with it. The charge before the Resident Magistrate Court of Arusha at Arusha was that the appellant was found in unlawful possession of government trophy contrary to section 86 (1) (2) (c) (ii) of the Wildlife Conservation Act No. Cap 283 as amended by the Written Laws (Miscellaneous Amendments) No. 2 Act No. 4 of 2016 read together with paragraph 14 (d) of the first schedule to and section 57 (1) and 60 (2) of the Economic and Organized Crime Control Act ( the EOCCA.) It was alleged in respect of the first count that the appellant on 14th March, 2019 at Pori Tengefu in Kitwai area within Simanjiro District in Manyara Region was found in possession of Grant Gazelle meat equivalent to one (1) killed Gazelle, valued at TZS 1,035,000.00. On the second count, it was also alleged that on the same day of 14th March 2019 at Pori Tengefu Kitwai area, at Simanjiro-Manyara, the appellant was found in possession of meat of two (2) oryx valued at TZS 12,880,000.00 For the purpose of appreciation of the reasons giving rise to this appeal, it is appropriate to make a brief statement of the factual background from which the appeal arises. The appellant was arrested

during the patrol against ant poaching that was conducted by PW1 (Wildlife Officer) together with Gilbert Babene PW4, Emmanuel Banari and Hamisi Mandari at Kitwai Forest Reserve Area at Simanjiro- Manyara, where the appellant was found with Wildlife animal meat (Grant gazelle and two oryx). Thereafter the meat was identified, exhibit form was prepared, then taken to KDU Office in Arusha. The appellant was taken to police station for further steps. The exhibit was handed to James Kugusa (PW3) the exhibit keeper. After investigation the appellant was charged as alluded earlier. When the charges were read over to the appellant on 26th March 2019, he pleaded not guilty to both two counts, consequently trial court entered a plea of not guilty to both counts. To prove their case prosecution called four prosecution witnesses and tendered eight exhibits. PW1 Michael Edson Msokwa , arrested the appellant with alleged trophy carried on the motor Cycle with Registration No. 746 CHF. PW1 prepared and tendered Seizure Certificate exhibit PI and handled to James Kugusa (PW4), thus handling over Certificate was tendered as exhibit P2, Motor cycle (exhibit P3), and knife (exhibit P4). Nathanaeli Thomas Laizer Wildlife Officer (PW2) identified the trophy, valued the same and tendered trophy valuation Certificate (exhibit P5).

James Kugusa (PW3), identified exhibit P2, signed exhibits P7 and P8 both handling over certificates. PW4 he was with PW1 when they arrested the appellant while on patrol. He identified exhibits PI, P3 and P4. In his defence, the appellant denied to have been in possession of the said trophies, but rather was kidnapped, bitten and taken to police station, where he was forced to sign a certain document not familiar to him. After trial, he was found guilty, convicted and sentenced as intimated above. Protesting his innocence, the appellant has preferred the present appeal raising eleven grounds. For reason to be revealed latter, we will deal with ground one only, regarding jurisdiction of the trial court to try an economic offence. Before us, the appellant appeared in person not represented. However, he urged the Court to receive and adopt his written submission to support his appeal. He also supplied us a list of authorities to be relied upon. The respondent Republic on their part, Ms. Amina Kiango, Ms. Neema Mbwana, and Mr. Benedict Kivuma Kapela, all learned Senior State Attorneys and Ms. Rose Kayombo, learned State Attorney who appeared for the respondent Republic did not support the appellant's conviction on the strength of ground one of appeal.

Ms. Kiango briefly submitted in support of ground one of the appeal that, the appellant was charged with economic offences. The case was tried by the subordinate court, that required consent of Director of Public Prosecutions (the DPP). The appellant's Charge Sheet at the trial court is dated 25/03/2019. The appellant was arraigned in court to answer charges on 26/03/2019. Consent was filed on 05/11/2019, after the appellant pleaded guilty and the case went on being adjourned for seven months. She submitted further that the Certificate conferring jurisdiction was not on record when the appellant plea was being taken and concluded that the proceedings were irregularly taken, thus a nullity. Because of the above mentioned procedural irregularity in the issuance of consent and certificate conferring jurisdiction on the trial court, the learned Senior State Attorney implored us to nullify the proceedings before the two lower courts, quash the appellant's conviction and set aside the custodial sentence imposed on him. The prayer by Ms. Kiango was premised on her position that, the trial court in essence, was not clothed with the requisite jurisdiction to try the appellant for economic offences. As a guidance, she referred us to our earlier decisions in the cases of Samson Amon Kauga v. Republic

(Criminal Appeal No. 446 of 2019) [2023] TZCA 121 (17th March 2023, TANZLII) and Salum s/o Andrew Kamande v. Republic (Criminal Appeal No. 513 of 2020) [2023] TZCA 133 (22 March 2023, TANZLII). Regarding the way forward, after having briefly reviewed and considered the evidence led in support of the prosecution's case, particularly on the handling of the ceased government trophy, Ms. Kiango was decisively of the view that, an order for a retrial would not be in the interest of justice in the circumstances of this case as there would be no sufficient evidence to support the appellant's conviction. According to the record of appeal and submissions made by the learned Senior State Attorney, there is no dispute that what the appellant was facing at the trial court were economic offences. Thus, the issue before us is whether the trial court was clothed with the requisite jurisdiction to try and determine the case. According to section 3(1) (3) (a) and (b) of the EOCCA, the court vested with jurisdiction to try economic offences is the High Court. However, section 12(3) of the EOCCA, authorizes the DPP or an officer authorized by him to direct such cases to be tried by a subordinate court. It provides that:

"12(3) The Director o f Public Prosecutions or any other State Attorney duly authorized by him may in each case in which he deems it necessary or appropriate in the public interest, by certificate under his hand, order that any case involving an offence triable by the High court under this Act, be tried by such court subordinate to the High Courtas he may specify in the Certificate . " On the other hand, the law under section 26(1) and (2) of the EOCCA respectively, provides for a requirement of the consent to prosecute from the DPP or an officer authorized by him before such an offence is tried by the subordinate court. The section provides: "26(1) Subject to the provisions o f this section, no trial in respect o f an economic offence may be commenced under this Act save with the consent o f the Director o f Public Prosecutions. (2) The Director o f Public Prosecutions; shall establish and maintain a system whereby the process o f seeking and obtaining o f his consent for prosecutions may be expedited and may, for that purpose, by notice published in the Gazette, specify economic offences the prosecutions o f which shall require the consent o f the Director o f Public Prosecutions in person

and those the power consenting to the prosecution o f officers subordinate to him as he may specify acting in accordance with his general or special instructions . " It is therefore clear that section 26 (1) & (2) of the EOCCA, require the Consent of the DPP or the authorized officer to prosecute an accused to be issued before commencement of any trial involving an economic offence. Where an accused person is arraigned before a subordinate court for an offence falling under EOCCA without there being a Consent to try him/her and no Certificate to confer jurisdiction to try the economic offence case, then that particular subordinate court lacks jurisdiction. It is the position of this Court and that has been well settled in our jurisprudence that, if an accused person is arraigned before a subordinate court and there is no consent to try him and, there is no certificate to confer jurisdiction on that subordinate court, such a subordinate court lacks jurisdiction to try the economic offence case and therefore the entire proceedings become a nullity. (See the case of Aloyce Joseph v. Republic (Criminal Appeal No. 35 of 2020) [2022] TZCA 771 (05 December 2022, TANZLII). Thus, we hold that since the Consent was introduced in the record of proceedings as reflected at

page 13 of the record after the appellant had pleaded, to the charges that confronted him, the trial court tried the case without jurisdiction. It is settled law in our jurisdiction that any decision reached by any court without jurisdiction is a nullity. In this regard, the Court in the case of Fanuel Mantiri Ng'unda v. Herman Mantiri Ng'unda & 2 Others [1995] T.L.R. 155 held thus: "The question o f jurisdiction for any court is basic, it goes to the very root o f the authority o f the court to adjudicate upon cases o f different nature... The question of jurisdiction is so fundamental that courts mustas a matter o fpractice on the face ofit be aware ofit." [Emphasis added] In the circumstances, we allow the first ground of appeal. As this ground suffices to dispose of the appeal, we allow it. From the foregoing analysis, in terms of section 4(2) of the Appellate Jurisdiction Act Cap. 141, we nullify the proceedings of the two lower courts, quash the appellant's conviction and set aside the custodial sentence imposed on him. In the circumstances, on the balance of scale and having considered factual setting of the material

on the record of appeal, the submission of the learned Senior State Attorney in support of the appeal, we hold that it will not be in the interest of justice to order a retrial of the case against the appellant. Consequently, we order that the appellant be released from jail if he is not otherwise held for some other lawful cause. DATED at ARUSHA this 28th day of October, 2024. F. L. K. WAMBALI JUSTICE OF APPEAL Z. G. MURUKE JUSTICE OF APPEAL L. E. MGOIMYA JUSTICE OF APPEAL The Judgment delivered this 29th day of October, 2024 in the presence of the appellant in person and in the presence of Eliainenyi Njiro, learned Senior State Attorney for the respondent/Republic, is